Can a Nonperson Be a Victim?

Occasional

Ana Rosa Rodriguez was born in 1991 without a right arm. Actually, she was not supposed to have been born. Her mother, 19-year-old Rosa Rodriguez, a Dominican immigrant, 7 1/2 months pregnant, had gone to Dr. Abu Hayat on New York's Lower East Side for an abortion. It was botched; Ana Rosa was born the day after. But in the course of the doctor's attempts to dismember her the day before, Ana Rosa's right arm had been torn off.

In February of this year, a jury in New York State Supreme Court convicted Dr. Hayat on a number of counts. One was performing an illegal abortion in the third trimester of pregnancy. While 11 states permit abortions during the final three months, New York prohibits it after 24 weeks.

(If the Freedom of Choice Act passes Congress and is signed by the president, this kind of state restriction will probably no longer be allowed anywhere. The bill leaves the definition of viability -- when the fetus can survive outside the uterus -- to the physician performing the abortion, not to the individual states.)

Dr. Hayat was also convicted of assault on Ana Rosa because of the arm that had been severed at the shoulder. The convictions are being appealed by the doctor's lawyer, Ronald J. Veneziano. There would appear to be no basis for appeal on the charge of an illegal abortion after 24 weeks. But Dr. Hayat may well get the assault charge overturned.

His attorney's argument is that, according to Roe v. Wade, a fetus is not a person. And under New York state criminal law, unless a person is assaulted, no crime has been committed. Justice Harry Blackmun, in writing the majority decision in Roe v. Wade, could not have been more clear:

" ... the word, 'person,' as used in the 14th Amendment, does not include the unborn."

If, says attorney Veneziano, the majority of the court had held instead that "the fetus was a person, they would have found themselves in the position of sanctioning murder. They can't have it both ways."

The New York state appellate courts will almost certainly agree. And should New York appeal to the United States Supreme Court, I doubt that it would agree to review the case, since there is not a majority to declare that fetuses are persons.

Yet, a sonogram of the 7 1/2-month-old fetus on the day of the mishandled abortion would clearly show a viable, developing human being, who -- just a day later -- did indeed become an actual person under the Constitution. Of course, she had been a member of our species for quite awhile.

If the assault charges are not dismissed, pro-choice organizations might find it somewhat uncomfortable, though necessary, to submit a Supreme Court brief on behalf of Dr. Hayat's innocence, under Roe v. Wade, of those assault charges. After Dr. Hayat's arrest, as Richard Perez-Pena reported in the New York Times, "more than 30 women came forward to say he had botched their abortions, often with serious consequences to their health." And two other assault counts on which the doctor was convicted concerned an incomplete abortion on Marie Moise, a Haitian immigrant. Reported the New York Times: "Mrs. Moise's husband, David, testified during the trial that the doctor, who had said the price would be $ 300, stopped midway through the procedure and demanded an additional $ 500." When Mr. Moise said he didn't have the additional money, "the doctor forced him to leave the office with his bleeding, semiconscious wife."

I have gone through criminal complaints against many physicians performing abortions, and abortion clinics, in a number of states. Some are harrowing. Abortion -rights groups might spend more resources on pushing for stricter regulations where those are needed and on monitoring clinics and physicians.

As for the doctor, the attention he has received is due in part -- as Scott McConnell, who is pro-choice, has noted in the New York Post -- to his having pushed "the reality of abortion in front of our eyes ... the fact that every fetus is a potential child is one we'd prefer to hide from ourselves."

A recent medical textbook, "The Unborn Patient: Pre-Natal Diagnosis and Treatment" (W.B. Saunders Co.) begins: "Only now are we beginning to consider ... the concept that the fetus is a patient, an individual."

If the operation had been successful, there would never have been an individual, Ana Rosa Rodriguez, who has learned to pull herself up and drink from a bottle with her remaining hand.

Copyright 1993 The Washington Post